GOP Iran Letter Might Be Unconstitutional. Is It Also Criminal?

by Peter Spiro

I’ll one-up Julian’s post below on Tom Cotton’s letter to the leaders of Iran admonishing them that any agreement entered into today could be reversed by Obama’s successor. It appears unprecedented for a group of opposition members of Congress to engage in such a communication.

It may also be criminal. The 1799 Logan Act provides that:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

Most putative Logan Act violations violate the spirit and structural foundations of the Logan Act (John Boehner’s invitation to Benjamin Netanyahu supplying a recent example). This one seems to squarely satisfy its elements. We have:

a correspondence with a foreign government (whether direct or indirect, in the form of an “open letter”, matters not),

without the authority of the United States (it enjoys no imprimatur from the executive branch nor, for that matter, from Congress as an institution),

with the pretty clear intent “to influence the measures or conduct of” the government of Iran in relation to a controversy with the United States.

Some might debate the last prong, but what other motivation could the letter have than to persuade Iranian leaders to back off a deal for fear that it will hardly be worth the paper it’s written on?

Now I know as well as the next guy that there’s been no Logan Act prosecution in the modern era. I also understand that in the wake of globalization national legislators routinely interact with foreign government officials. Iran is probably sophisticated enough about US constitutional law to the point that the letter’s substance isn’t news to them. But an initiative like the Cotton letter seems to cross a line, and perhaps it should be slapped back. How will contested foreign policy initiatives ever get off the ground if whoever’s out of the White House can meddle so brazenly? We have clearly left the era in which politics stopped at the water’s edge.

UPDATE: Steve Vladeck has this post up at Lawfare arguing against the Logan Act’s viability in this context. I take the point on desuetude. A law that lies around unused for a protracted period at some point becomes not-law (think jaywalking). Steve also argues that as a legislator, Cotton may have been acting with the “authority of the United States.” I can’t agree on that point. If anything, Cotton’s status as a senator makes the offense a greater one, because it’s more likely to be taken seriously and do real damage to national foreign relations.

As for the First Amendment, there are certainly First Amendment implications here. The Cotton letter involves speech that would be fully protected in the ordinary domestic context. But the Constitution in general and the First Amendment in particular are seen through different lens when it comes to foreign relations. Does that mean that the Logan Act would withstand a First Amendment defense? Not necessarily. But the answer is not so clear cut as it would otherwise seem.

None of this is to say that there will or even should be a Logan Act claims against Cotton and his collaborators, and the factors that Steve highlights plainly contribute to non-prosecution as a prudential matter. But the above-the-fold attention given to the Cotton letter shows that there is something out of the ordinary going on here. If he had said the same things on CNN no one would have paid any attention; it would have been business as usual. Not so as addressed to the Iranian leadership.

30 Responses

I’m not sure how this is so different from, say, a presidential candidate committing to withdraw troops from a war where troops were currently fighting, or to close down Guantanamo. Such statements also do not merely promise to end a policy, but have the effect of weakening its present efficacy.

Perhaps the Cotton letter fits the “correspondence with a foreign government” requirement more neatly, but these days a televised speech or article in Foreign Affairs is certainly a way of “indirectly” communicating with a foreign government.

On the other hand, it is not clear that with the Cotton letter there is a “measure” of the U.S. involved. Indeed, one can frame the letter as defending more obvious measures of the U.S., like the Security Council-authorized sanctions regime. I would be very hesitant to define “measures” as “executive foreign policy but not relevant legislation”.

Or what about a candidate who promises to sign a treaty if elected?

And then of course there is Snowden.

3.09.2015
at 1:45 pm EST Eugene Kontorovich

Eugene: a statement by a politician is not correspondence sent to a foreign govt.
In any event, the First Amendment should trump the Logan Act under the circumstances.
Peter: the slap back should be a political slap back

3.09.2015
at 2:18 pm EST Jordan

The First Amendment is a bar on prior restraint, not a get out of jail free card with respect to the potential consequences of speaking. I don’t see how Logan is preempted by the 1A.

3.09.2015
at 2:58 pm EST JD

Eugene, the way I read the statute, you don’t need a “measure of the United States”, only the “measures or conduct of a foreign government . . . in relation to any disputes or controversies with the United States.” It’s disjunctive.

This is not as bad as Casey meeting with the Iranians to block a deal with Carter before the 1980 election or Nixon with Kissinger contacting the South Vietnamese telling them they would get a better deal with a Nixon Administration to block a deal that Johnson was negotiating before the 68 election. It has the modest benefit of being in the open. But it is still clever by half stuff. I fear the Republicans shall rue this day.

3.09.2015
at 4:29 pm EST Benjamin Davis

The statute naturally raises the issue of whether the members of Congress had the “authority of the United States” in issuing their communication. They did not. The Supreme Court long ago held:

“Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, ‘The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.’ Annals, 6th Cong., col. 613.”

United States v. Curtiss-Wright Export Corp., 299 US 304, 320-321 (1936). That decision has never been overruled. Note that the Logan Act also reaches Speaker Boehner’s invitation for Prime Minister Bibi Netanyahu to appear before a joint session of Congress in order to attack the Executive’s Iranian Nukes Myth negotiations.

Response…After listening to news accounts regarding Senator Cotton’s open letter to Iran, listening to both msnbc and CNN’s accounts, reading articles such as yours and accompanying comments, NO MORE! Each and every one of these 47 Senators are shameful and ought to be charged individually under the Logan Act. Additionally, Cotton should be charged with conspiracy. As an African American I can no longer stand with the QUIETNESS party. During the celebratory inaugural ball while President Obama and the First Lady attended members of the Republican party plotted and connived behind the 1st African American President ‘s back. This was only the beginning of the in your face belittling, out right disrespectful attitude, and actions that flagrantly show African Americans, and those who with eyes open living in reality, that many Republican in Congress view President Obama is ” just another stereotypical black man subservient to Caucasians. The Quietness Party needs to shrink rapidly every day, quickly, rise up and speak up.

3.09.2015
at 10:06 pm EST SED

Response…

3.09.2015
at 10:15 pm EST SRD

They don’t need the first amendment to protect them. The Speech or Debate clause (Article 1, Section 6, Clause 1 of the federal constitution) prohibits members of Congress from being charged with a crime that arises out of their official speech, even when such speech is not protected by the first amendment.

This Logan Act stuff strikes me as silly partisanship: of course members of Cngress are involved in foreign policy. As you note, they participate in trade delegations, vote on sanctions, approve treaties, etc.

3.10.2015
at 12:19 am EST Dave

Would like to share part of the non-partisan, Congressional Research Office report (2006), citing a 1975 Department of State report addressing Congressional intent re the parameters of the Logan Act as they pertained to Members of Congress,

“According to a 1975 State Department statement, which was noted in a February 1, 2006, report on the Logan Act by the nonpartisan Congressional Research Service: “The clear intent of this provision … is to prohibit unauthorized persons from intervening in disputes between the United States and foreign governments. Nothing in [the law], however, would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution.”

3.10.2015
at 12:52 am EST Anne Scully

Congress should not exempt itself. The ‘waters edge’ policy codified by the Logan Act is a great example of both, the frequent dysfunction in American foreign policies (see also Iraq in 2007), and one of many rarely enforced federal laws that give the DOJ too much prosecutorial discretion. Either enforce it or repeal it! This chaos is clearly dividing and hurting us.

The First Amendment does quite a bit more than protect against prior restraint. This is a well-written polemic, but it is silly for grown-ups to debate whether a US Senator is going to be charged with violating a law that has not been enforced for 200 years because he engaged in writing a political tract that embarrassed the President. Maybe the author could tell me which Supreme Court Justice is going to vote to uphold the prosecution of a US Senator for political speech? Maybe you will have more luck imagining a panel of the DC Circuit. The prosecution is more likely to be found to be a High Crime or Misdemeanor.

3.10.2015
at 12:13 pm EST Carl Snook

Samantha Smith. Jane Fonda. Anyone who writes the Pope.

3.10.2015
at 1:04 pm EST Bob Higgins

Response: OK, what is a trackback? a pingback? How many don’t get some of your jargon – and feel distanced?

The Speech and Debate clause shows that the founders intended to provide added protection to the speech of Congressmen precisely because robust congressional speech is essential to the functioning of democracy. The idea that an expressive act taken by members of Congress who are writing in their capacity as members of the Government could be proscribed as criminal is contrary to the underlying purpose of that clause.

3.10.2015
at 3:11 pm EST Daniel Ortner

SED: It may be difficult to demonstrate that all of the hate speech directed against our President is at least partly racist, but I can’t help but suspect that the relatively constant hate speech (that’s what it is) directed at our twice-elected President has some such racist base. We have witnessed a fairly constant hateful and nonsensical questioning of the President’s birthplace, his religion, his patriotism (e,g., from a former NYC Mayor without apology), and leadership.
They must also have hated his eloquent speech at Selma, which I thought was thoroughly presidential, almost like the Gettysburg Address!

3.10.2015
at 3:39 pm EST Jordan

This incident differs from the examples offered because it is unprecedented. The Logan Act hasn’t been used in the past because there’s been nothing like this before. There’s only been one indictment under the law. That indictment involved a newspaper editorial criticizing a government action. Certainly not in the class this letter is.

There’s a huge difference between sending an open letter to a foreign government and criticizing actions internally, especially by a newspaper. I also fail to see why the first amendment would come into play. Even the first doesn’t protect against yelling fire in a crowded theater.

Yes, I understand filing charges against the Cotton 47 would very likely create a firestorm in this country. However, I also fear what will happen if such actions continue. This directly affects our national security, and it should not be just shrugged off.

3.10.2015
at 3:57 pm EST Haddie Nuff

Haddie

There have been multiple other instances where it might apply. Nixon and Kissinger before he was president scuttling the deal in Vietnam behind Johnson’s back. Pelosi in Damascus.

Fire in a crowded theater, come on. That thing needs to be put to bed. It was a bad analogy used to justify throwing anarchists in prison for political speech. Sometimes there are actual fires in theaters.

This is pure partisanship, and as such, is full of bluster and bullshit.

3.11.2015
at 12:21 am EST Brian

Yeah, the Logan Act would be unconstitutional if it applied to Congress, because Congress is granted the responsibility over regulation of foreign commerce (Article I, Section 8) and the Senate has ratification authority over treaties. Now be aware of something, The Constitution does not expressly provide for any alternative to the Article II treaty procedure. The idea that this or any President gets to control foreign policy is traditional, not constitutional.

3.11.2015
at 2:47 am EST Jack Pershing

Jack…. 18,500 non-treaty executive agreements signed since 1789, 17,000 of them since 1939, none of them ratified pursuant to the Treaty Clause, suggest you just might be wrong on that point.

Of course, they could *all* be unconstitutional. Care to start unraveling all 18,500 of them, or those still in effect, based on that? Alternatively, how come nobody has litigated the question, or how come there’s not been a judicial ruling on the question?

3.12.2015
at 2:27 am EST Jim

Response…If all those who have raised this fuss over the open letter from the Senators regarding the Logan act had been as vocal over Senator Bill Nelson’s DIRECT interference in the foreign affairs of the US by meeting with Syrian President Assad, I would agree they have a point but since I find no record of that protest I can only view discussions like this as examples of intellectual dishonesty designed to say the uninformed masses.

3.12.2015
at 10:02 am EST Robert

It’s quite clear that they’re guilty of Logan Act violations. The 1936 caselaw making it clear that the Executive Branch is the sole authorizer of foreign policy negotiations is determinative; even if it wasn’t, these Senators do not have the backing of Congress as an institution.

It’s also quite clear that they aren’t protected by the Speech and Debate clause. If they had said the same things on the Floor of the Senate or entered them into the Congressional Record, *then* they would be protected by the Speech and Debate Clause. Sending a letter to Iran? Not protected.

Heck, if they’d gone to the floor of Congress and *proposed* sending such a letter, and tried to get a law passed ordering the government to send such a letter, then they’d have been completely doing the right thing.

But instead they freelanced and went behind the back of the government. Which is precisely what the Logan Act is designed to prohibit, and it prohibits it for good reason.

There is no First Amendment defense here, either, because this is essentially a “time, place, and manner” restriction. They can say the exact same things on the floor of Congress. They can probably say them in interviews. What they can’t do is to *write a letter to the government of Iran* saying them.

Desuetude is the only defense they have, but if we’re going to argue desuetude, then all the Espionage Act 1917 prosecutions undertaken by Obama are invalid for desuetude, and I don’t think anyone’s made that claim. There is some question as to whether desuetude even exists under federal caselaw.

3.12.2015
at 11:39 am EST Nathanael

“Nixon and Kissinger before he was president scuttling the deal in Vietnam behind Johnson’s back. ”

That was an obvious Logan Act violation. Also that was actually treason (which this letter isn’t.)

There is solid evidence of Reagan’s 1980 campaign team doing the same thing by contacting Iran and urging them not to release the hostages.

Also a Logan Act violation. Also was actually treason (which this letter isn’t).

You want to know why those two cases weren’t prosecuted? Because those actions were successfully concealed until after it was too late to prosecute. We still have standards of evidence; you can’t prosecute without enough evidence.

3.12.2015
at 11:46 am EST Nathanael

The Republicans have NO respect for President Obama or his office. They believe he is some foreign object that place holder for the Democrats. I’ve read all of the legal arguments and I think the violation of the Logan Act is clear. But should each Senator be punished MAYBE? But the Senator naïve enough to be coerced to put his neck out there should be the Sacrificial Lamb!!Republicans have disrespected the office of the President numerous times. They have ridiculed President Obama even more. I think it’s the Duty of the DOJ to ensure that NO other Senator will directly interfere in Foreign policy negotiations again.

3.12.2015
at 1:35 pm EST Anthony Washington

Haddie wrote, “There’s a huge difference between sending an open letter to a foreign government and criticizing actions internally, especially by a newspaper.” Perhaps you could explain the difference between (x) publishing an op-ed on a Senator’s website stating that the president lacks the power to sign a binding deal with Iran absent Senate consent, and (y) publishing an open letter on a Senator’s website stating the exact same thing. If the action in clause (x) is fully protected by both the First Amendment and the Speech + Debate clause, as I think you would have to agree, why isn’t the action in clause (y)? What’s the difference?

3.14.2015
at 12:28 pm EST Douglas Levene

Whether or not the Republicans have violated the
Constitution or Logan Act, the actions taken by Boehner and Cotton are despicable and a direct insult to the President of the United States.
Hey guys, right up there with a bunch of drunken teenagers.

3.17.2015
at 4:02 pm EST Ray Kimber

According to the Supreme court ruling in this case United States v. Curtiss-Wright Export Corp.

The Senate nor The House can interfere in international negotiations. It is deemed a threat to national security, it violates the constitution in terms of separation of powers. States are not sovereign nations, they have no power beyond our borders.

What the 47 Senators had done is a threat to national security. And they should be punished based on the higher court ruling that defined international representation of the US solely on the president.

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